中印反垄断法的影响
中印反垄断法的影响（上）
作者：英国《金融时报》森迪普•塔克(Sundeep Tucker)、帕提•沃德米尔(Patti Waldmeir)
2008年7月30日 星期三
对于全球金融体系，中国与印度如今已变得如此不可或缺，全世界必定很快就能感受到两国反垄断立法即将发生的改变所带来的影响。
在首次提出近15年后，中国的首部反垄断法将于本周五开始实施。亚洲另一个发展大国印度计划在未来数月内实施严厉的新反垄断法。这种变化得到了亚洲其它地区的响应：香港准备推出其第一部竞争法，而日本和韩国业已确立的竞争制度也变得更加活跃。
就在上周，日本公平贸易委员会(Fair Trade Commission)突然搜查了4家公司的办公室，怀疑它们共谋提高用于绝缘材料的聚乙烯片价格。然而，让人们的想象开始驰骋的，是中印两国相似的发展——它们各自的跨境企业活动都达到了创纪录水平。
这些变化受到商业和政治圈的广泛欢迎，证明了中印两国正稳步融入全球金融体系及其规则和价值观。突然间，中国和印度将与美国和欧盟相匹敌，成为重要的全球竞争法律中心。路伟(Lovells)律师事务所驻上海的基尔斯蒂•尼克尔森(Kirstie Nicholson)表示：“人们普遍预计，中国很快会加入欧盟和美国之列，成为竞争法的第三大司法辖区。”
从此，人们将必须重视中国和印度政府对反垄断问题的看法。各公司必须确保自己遵守新的反垄断法，否则将面临严厉处罚。在印度，违法个人会面临刑事诉讼，并可能被判刑。但随着新法实施的临近，商业和法律圈子越来越担心，新法规可能带来计划外的反面后果，包括拖延跨境并购完成的时间。
年利达(Linklaters)律师事务所新任亚洲竞争事务主管艾瑞克•索德林德(Erik Soderlind)称：“一旦中国和印度的新制度就位，亚洲内外的竞争格局就会显著改变。但是新法规对商业和交易的影响，将主要取决于其实施方式。”
中印两国新制度的建立都经历了漫长的协商过程，以欧盟模式为广泛基础，涵盖了反竞争协议、滥用市场支配地位和合并管制这三大支柱。它们的通过受到多种动机的推动。在中国，政策制定者渴望证明中国特色的社会主义市场经济拥有保护消费者的法律。而印度也渴望国际社会承认它是一个以西方长期采用的规则为支柱的重要经济体。但印度机构明显更热衷于在现有的、比较薄弱的反垄断制度下支持消费者保护问题。它们最近盯住了几个涉嫌成立企业联盟的部门，即电信、水泥、航空、轮胎制造、炸药及船运。
中国的新反垄断法将于8月1日生效，它可能成为法制经济建设过程中的一块里程碑，但也可能只是中国式保护主义的一个有力新工具。跨国公司正密切关注这项法律将如何实施，担心它会被有选择性地用来针对它们，而不是其中国竞争对手。外资公司能否介入高速增长的中国经济，是否有能力与强大的国有企业竞争，可能就取决于这部法律。
尽管立法通过已有一年，但目前尚不清楚，这部反垄断法具体将涵盖哪些交易、公司和行为。法律专家和大型外资公司曾希望，具体的实施细则能在8月1日的最后期限前公布，但目前看来，他们可能只能得到有限的指引。欧盟商会(European Union Chamber of Commerce)驻上海法律工作小组负责人、安永实(Eversheds)律师事务所的孔宏德(Peter Corne)表示：“其模糊程度不亚于罗马条约(Treaty of Rome)。”他指出，目前的反垄断愿望充其量只能算是有了一个法律框架，需要时间建立一整套规章制度和法律解释体系对其进行充实。
对于许多跨国公司来说，新规定将会使透明度和可预测性的现状有所改善。新法律在价格操纵及垄断行为等领域的实施，还可以帮助促进国内市场对外来竞争的开放。
在中国，贸易协会的会员企业通常仍会通过会谈就价格及商业实践达成一致——这正是新制度特别禁止的行为。不过，律师们警告，不要将反垄断法视为万能药。高伟绅(Clifford Chance)驻香港的艾莉森•林赛(Alison Lindsay)表示：“新法律应该会给这个领域带来更大的确定性，但这一点本身并不能为外国投资者创造巨大的商机。更大的机会可能来自同时放开对一些部门的管制。”
从金融服务到电讯等行业，中印两国都对外商投资实施了限制。但许多观察人士担心的是新法律对并购交易的直接不利影响，甚至是那些主要发生在中印境外的交易。中国尚未正式公布详细的并购规定，但泄露出来的相关消息显示，若并购双方在中国的营业额均达到4亿元人民币（合6000万美元）且全球总营业额达到100亿元人民币，或者在中国的营业额合计达到20亿元人民币，那么企业就需申请反垄断批准。
印度的情况与此类似。印度本月公布的法律修订草案，就连富有经验的律师都认为其极为复杂。该草案设定的门槛以全球及国内营业额为基础，一旦达到相关规定，企业就必须提出并购申请。指引提出，对于涉及大型国际公司的交易，如果拟议结盟的双方在印度拥有资产达到5000万美元，或者在印度的年营业额达到1.5亿美元，那么收购方就必须申请反垄断批准。
(待续)阅读本文章英文,请点击 DEALS ON HOLD?
DEALS ON HOLD? 1
By Sundeep Tucker and Patti Waldmeir
Wednesday, July 30, 2008
China and India are now so integral to the global financial system that the impact of looming changes to antitrust legislation in both countries is sure to be quickly felt across the world.
China will this Friday implement its inaugural anti-monopoly laws, nearly 15 years after they were first proposed. India, Asia's other giant developing economy, is scheduled to implement tough new antitrust laws in the coming months. The changes find echoes elsewhere in the region, with Hong Kong set to introduce its first ever competition laws and established competition regimes in Japan and South Korea becoming ever more active.
Only last week, Japan's Fair Trade Commission raided the offices of four companies on suspicion that they had conspired to increase the price of polyethylene sheeting used in insulation materials. But it is the twin developments in China and India, each of which is experiencing record levels of cross-border corporate activity, that has set imaginations racing.
The changes, broadly welcomed in business and political circles, testify to China and India's steady integration into the global financial system and its rules and values. At a stroke, China and India will rival the US and the European Union as key global centres for competition law. “It is widely expected that China will soon be the third main jurisdiction for competition law, together with the EU and US,” says Kirstie Nicholson of law firm Lovells in Shanghai.
Turning a blind eye to Beijing's and New Delhi's views on antitrust issues will soon no longer be possible. Companies will have to ensure they comply with the new anti-monopoly laws or risk stiff penalties. In India's case, individuals face criminal prosecutions and possible jail sentences. But as implementation looms, there is mounting anxiety in business and legal circles that the new laws could have unintended adverse consequences, including delaying the completion of global mergers and acquisitions.
Erik Soderlind, the new head of Linklaters' competition practice in Asia, says: “The competition landscape in Asia and beyond will change markedly once the new regimes are in place in China and India. But what impact the new regulations have on business and deal-making will depend a lot on how they are implemented.”
The new regimes in each country were developed after lengthy consultation and are broadly based on the EU model, spanning the three main pillars of anti-competitive agreements, abuse of dominance and merger control. Their adoption has been driven by a mixture of motives. In China, policymakers were keen to demonstrate that the self-styled socialist market economy has laws to protect consumers. India, too, is keen to earn global recognition as a heavyweight economy that is underpinned by rules long adopted in the west. But Indian agencies have become noticeably more zealous in championing consumer protection issues under the existing, weaker antitrust regime. They have recently targeted several sectors suspected of cartelisation, namely telecommunications, cement, airlines, tyre-making, explosives and shipping.
China's new anti-monopoly law, which takes effect on August 1, could be a milestone in the creation of an economy based on law – or it could merely prove a potent new tool of Beijing-style protectionism. Multinational companies are watching closely to see how the law will be enforced, worried that it could be used selectively against them and not against their Chinese rivals. Foreign companies' access to the fast-growing economy, and their ability to compete with powerful state-owned monopolies, could be riding on it.
It is unclear exactly what transactions, companies and behaviour will be covered by the Chinese rules, even a year after their legislative passage. Legal experts and big foreign companies had hoped that detailed implementing regulations would be published before the August 1 deadline, but it now seems likely that only limited guidance will be available. “It's no more vague than the Treaty of Rome,” says Peter Corne of the law firm Eversheds, chairman of the legal working group of the European Union Chamber of Commerce in Shanghai, noting that it will take time to build up a body of regulations, rules and interpretations to flesh out what amounts to only a legal skeleton of anti-trust aspirations.
For many multinationals, the new rules will be an improvement on the status quo in terms of clarity and predictability. The enforcement of new laws in areas such as price-fixing and monopolistic behaviour could also help force open domestic markets to outside competition.
In China, member companies of trade associations still commonly meet to agree prices and business practices – conduct specifically prohibited under the new regime. Yet lawyers warn against viewing the antitrust laws as a panacea. Alison Lindsay of Clifford Chance in Hong Kong says: “The greater certainty which the new laws should bring to this field will not, in itself, create significant business opportunities for foreign investors. Greater opportunities may come from any parallel process of liberalisation in restricted sectors.”
India and China each restrict foreign investment in sectors ranging from financial services to telecoms. But many observers fear an immediate adverse impact on mergers and acquisitions – even for deals that take place largely outside China or India. Detailed M&A regulations have yet to be officially released in China but, according to leaked reports, companies will have to file for antitrust approval where each has turnover of Rmb400m (m, £30m, �38m) in China as well as total global turnover of Rmb10bn or combined turnover in China of Rmb2bn.
It is a similar story in India. Revised draft regulations published this month, which even experienced lawyers regard as fiendishly complex, set out thresholds based on global and domestic turnover which, if met, will make merger filings mandatory. The guidance suggests that for deals involving a large global company where two of the parties to the proposed tie-up have assets of m in India or annual Indian turnover of 0m, the acquirer will have to file for antitrust approval.
(To be continued)
中印反垄断法的影响（下）
作者：英国《金融时报》森迪普•塔克(Sundeep Tucker)、帕提•沃德米尔(Patti Waldmeir)
2008年7月31日 星期四
企业纷纷抱怨，中印的营业额门槛会令许多完全或几乎不涉及本土竞争和消费者的交易受到限制。上月卸去孟买商会(Bombay Chamber of Commerce)会长职务的诺华(Novartis)印度公司主管伦吉特•沙安尼(Ranjit Shahani)表示：“在印度，交易规模不断扩大，营业额也在快速上升。从这个背景来看，这些门槛都设得太低了。”
律师们预计，全球任何地方的大型企业——即便在中国或印度有有限的业务——都必须首先获得中国或印度政府的批准，才能完成大规模的全球交易。从必和必拓(BHP)与力拓(Rio Tinto)到微软(Microsoft)与雅虎(Yahoo)，可能受到影响的企业几乎是数不胜数。众达(Jones Day)律师事务所驻上海的王智平(Peter Wang)说：“在中国，这类大规模境外交易当然会像在其它地方一样受到密切关注。人们预计，像其它地方一样，一些此类交易在中国……会引发种种问题，需要进行更仔细的审查，并由此造成一些拖延，这种预期也是合理的。”
在中国，并购申请有可能只是一种形式，也有可能会在申请获得批准或遭到拒绝前造成长达6个月之久的拖延。与印度不同，目前尚不清楚中国的竞争监管当局将如何对待涉及私人股本或合资企业的交易。
另一个重要的问题是，中国本土企业是否会受到同样的详细审查。与外资企业不同，到目前为止，中国本土企业的并购交易还不需要申请批准。新法律将适用于中资企业，但对于仍然是中国经济主体的国有企业却存在一个漏洞。如果政府想豁免它们，也许就能做到。新法律对国有企业适用规定的模糊是有意而为之，其具体运用仍有待观察。
在印度，一份并购申请触发的等待期最长可达210天，而欧盟和美国一般为30至60天。多年来，在与以效率低下闻名的印度政府机构打交道的过程中，印度商界领袖已是伤痕累累。他们自信地预言，印度竞争机构将缺乏及早决策所需的专业技能和动力，尤其是在复杂的案子上。
沙安尼表示：“如果这些严酷的权力机构在两年前已经就位，那么塔塔(Tata)/哥鲁氏(Corus)这样的交易就永远不会发生。交易不会等上210天。塔塔就会失去那笔交易。印度政府机构速度太慢。”
孟买的一位资深投资银行家表示，金融业只能服从于对并购交易有负面影响的新法律，但他补充道：“新法律迟早会阻碍印度公司的高调海外收购。到时候，所有的禁锢都会被打破，而政府将在压力下被迫对法规进行修改。”
法律的实施也是一个大问题。中国政府内部之争已经阻止了一家指定专业机构的诞生，在尘埃落定之前，中国商务部(Ministry of Commerce)、中国国家工商行政管理总局(SAIC)和国家发改委(NDRC)将共同承担执行责任。路伟律师事务所在本月给客户的一份研究报告中警告称，企业“将听凭一条难以捉摸的三头巨龙的摆布”。
英国富而德律师事务所(Freshfields Bruckhaus Deringer)的亚历克斯•波特(Alex Potter)补充表示，这样的权力分割，特别是在工商总局与国家发改委之间，很容易引起“管制混乱”。政府部门之间的竞争与反垄断法所提倡的竞争完全不同。
印度没有这样的巨龙——它建立了印度竞争委员会(Competition Commission of India)，最近还设立了竞争上诉法庭(Competition Appellate Tribunal)，听取针对印度竞争委员会的指令提起的上诉。但商界担心，两家机构不会提供具备足够竞争力的薪酬来吸引最有头脑的人，而且两家机构都没有足够的经验应对可能出现的办案量。对国际律师及会计师事务所在印度执业能力的严格限制，可能会进一步增加一些全球性交易的复杂性。
高伟绅印度办事处的资深律师马尼什•巴尔(Manish Bahl)表示，印度允许企业用电子邮件提出并购申请的做法为世界首创，值得赞许，而在文件中使用英语所带来的时间和成本效益也不应被低估。
由于近年来外向并购交易的增多，中印两国企业已逐渐熟悉了该如何应对世界各地的反垄断制度。同样，全球领先的企业对于在多个司法辖区申请并购批准也已经习以为常。
不过，中国和印度努力打造各自更顺应公民需求的资本主义形式的努力，归根结底取决于创造一种竞争文化——这不是仅凭法律本身就能实现的。贝克-麦坚时律师事务所(Baker & McKenzie)驻上海的吕俊辉（音译）表示：“需要让人们意识到，他们不应该与竞争者讨论定价及其它事宜。竞争法仍属于新生事物，在中国如此，在亚洲也普遍如此。”
译者/陈云飞、秦月
阅读本文章英文,请点击 DEALS ON HOLD?
DEALS ON HOLD? 2
By Sundeep Tucker and Patti Waldmeir
Thursday, July 31, 2008
China and India are now so integral to the global financial system that the impact of looming changes to antitrust legislation in both countries is sure to be quickly felt across the world.
China will this Friday implement its inaugural anti-monopoly laws, nearly 15 years after they were first proposed. India, Asia's other giant developing economy, is scheduled to implement tough new antitrust laws in the coming months. The changes find echoes elsewhere in the region, with Hong Kong set to introduce its first ever competition laws and established competition regimes in Japan and South Korea becoming ever more active.
Only last week, Japan's Fair Trade Commission raided the offices of four companies on suspicion that they had conspired to increase the price of polyethylene sheeting used in insulation materials. But it is the twin developments in China and India, each of which is experiencing record levels of cross-border corporate activity, that has set imaginations racing.
The changes, broadly welcomed in business and political circles, testify to China and India's steady integration into the global financial system and its rules and values. At a stroke, China and India will rival the US and the European Union as key global centres for competition law. “It is widely expected that China will soon be the third main jurisdiction for competition law, together with the EU and US,” says Kirstie Nicholson of law firm Lovells in Shanghai.
Turning a blind eye to Beijing's and New Delhi's views on antitrust issues will soon no longer be possible. Companies will have to ensure they comply with the new anti-monopoly laws or risk stiff penalties. In India's case, individuals face criminal prosecutions and possible jail sentences. But as implementation looms, there is mounting anxiety in business and legal circles that the new laws could have unintended adverse consequences, including delaying the completion of global mergers and acquisitions.
Erik Soderlind, the new head of Linklaters' competition practice in Asia, says: “The competition landscape in Asia and beyond will change markedly once the new regimes are in place in China and India. But what impact the new regulations have on business and deal-making will depend a lot on how they are implemented.”
The new regimes in each country were developed after lengthy consultation and are broadly based on the EU model, spanning the three main pillars of anti-competitive agreements, abuse of dominance and merger control. Their adoption has been driven by a mixture of motives. In China, policymakers were keen to demonstrate that the self-styled socialist market economy has laws to protect consumers. India, too, is keen to earn global recognition as a heavyweight economy that is underpinned by rules long adopted in the west. But Indian agencies have become noticeably more zealous in championing consumer protection issues under the existing, weaker antitrust regime. They have recently targeted several sectors suspected of cartelisation, namely telecommunications, cement, airlines, tyre-making, explosives and shipping.
China's new anti-monopoly law, which takes effect on August 1, could be a milestone in the creation of an economy based on law – or it could merely prove a potent new tool of Beijing-style protectionism. Multinational companies are watching closely to see how the law will be enforced, worried that it could be used selectively against them and not against their Chinese rivals. Foreign companies' access to the fast-growing economy, and their ability to compete with powerful state-owned monopolies, could be riding on it.
It is unclear exactly what transactions, companies and behaviour will be covered by the Chinese rules, even a year after their legislative passage. Legal experts and big foreign companies had hoped that detailed implementing regulations would be published before the August 1 deadline, but it now seems likely that only limited guidance will be available. “It's no more vague than the Treaty of Rome,” says Peter Corne of the law firm Eversheds, chairman of the legal working group of the European Union Chamber of Commerce in Shanghai, noting that it will take time to build up a body of regulations, rules and interpretations to flesh out what amounts to only a legal skeleton of anti-trust aspirations.
For many multinationals, the new rules will be an improvement on the status quo in terms of clarity and predictability. The enforcement of new laws in areas such as price-fixing and monopolistic behaviour could also help force open domestic markets to outside competition.
In China, member companies of trade associations still commonly meet to agree prices and business practices – conduct specifically prohibited under the new regime. Yet lawyers warn against viewing the antitrust laws as a panacea. Alison Lindsay of Clifford Chance in Hong Kong says: “The greater certainty which the new laws should bring to this field will not, in itself, create significant business opportunities for foreign investors. Greater opportunities may come from any parallel process of liberalisation in restricted sectors.”
India and China each restrict foreign investment in sectors ranging from financial services to telecoms. But many observers fear an immediate adverse impact on mergers and acquisitions – even for deals that take place largely outside China or India. Detailed M&A regulations have yet to be officially released in China but, according to leaked reports, companies will have to file for antitrust approval where each has turnover of Rmb400m (m, £30m, �38m) in China as well as total global turnover of Rmb10bn or combined turnover in China of Rmb2bn.
It is a similar story in India. Revised draft regulations published this month, which even experienced lawyers regard as fiendishly complex, set out thresholds based on global and domestic turnover which, if met, will make merger filings mandatory. The guidance suggests that for deals involving a large global company where two of the parties to the proposed tie-up have assets of m in India or annual Indian turnover of 0m, the acquirer will have to file for antitrust approval.
Companies complain that the turnover thresholds in China and India will trap many transactions that have little or no implications for local competition or consumers. Ranjit Shahani, the head of Novartis India who stepped down last month as president of the Bombay Chamber of Commerce, says: “In India, deal sizes are growing larger and turnover is rising quickly. In that context these threshold levels are set far too low.”
Lawyers predict that big companies anywhere in the world – even with limited operations in China or India – will have to wait for permission in Beijing and New Delhi before they can complete large global deals. From BHP and Rio Tinto to Microsoft and Yahoo, the list of companies that could be affected is almost endless. “Certainly such big offshore deals will get a close look in China as elsewhere, and it would be reasonable to expect some such deals . . . to raise issues requiring a closer look – and thus some delay – in China as elsewhere,” says Peter Wang of Jones Day in Shanghai.
Merger filings in China could be merely a formality; or they could trigger significant delays of up to six months before approval is granted – or refused. Unlike in India, it is unclear how the competition authorities in China will treat deals involving private equity or joint ventures.
Another big question is whether China's domestic companies will face equal scrutiny. Up to now, unlike foreign companies, they have had no obligation to file for merger approval. The new law will apply to Chinese companies but there is a loophole for state-owned enterprises, which still dominate the economy. If Beijing wants to exempt them, it probably can. The application of the law to state-owned companies was left deliberately vague, and it remains to be seen how it will be applied.
A merger filing in India will trigger a waiting period of up to 210 days, compared with the typical 30-60 days in the EU and US. India's business leaders, scarred by years of dealing with India's notoriously inefficient bureaucracy, confidently predict that the competition authority will lack the expertise or drive to make early decisions – especially in complex cases.
Mr Shahani says: “If these draconian powers had been in place two years ago then deals such as Tata/Corus would never have taken place. Commerce doesn't wait 210 days. Tata would have lost that deal. The Indian bureaucracy is far too slow.”
One senior investment banker in Mumbai says that the financial community is resigned to the laws having an adverse impact on M&A but adds: “The new laws will, sooner or later, stop a high-profile overseas acquisition by an Indian company. Then all hell will break loose and the government will be pressured into changing the regulations.”
Enforcement is also a major concern. Turf wars in Beijing have prevented the creation of a designated specialist agency and, until they are settled, the Ministry of Commerce, the State Administration for Industry and Commerce (SAIC) and the National Development and Reform Commission (NDRC) will share responsibility for enforcement. In a note to clients, Lovells this month warned that business was “at the mercy of an unpredictable three-headed dragon”.
Such a split, in particular between the NDRC and SAIC, could easily cause “regulatory confusion”, adds Alex Potter of Freshfields Bruckhaus Deringer. Competition between government bureaucrats is scarcely the kind of competition that the law was passed to promote.
India has no such dragon, having set up the Competition Commission of India and, more recently, the Competition Appellate Tribunal to hear appeals against the orders of the CCI. But business fears that neither body will offer salaries competitive enough to attract the sharpest brains and that both institutions will lack experience in dealing with the likely caseloads. The tight restrictions governing the ability of global law and accountancy firms to operate in India could add further complexity to some global deals.
Manish Bahl, a senior lawyer in the India group at Clifford Chance, says the Indian authorities deserve praise for allowing companies to use e-mail to make merger filings – a world first – and that the time and cost benefits of using the English language in documents should not be underestimated.
Thanks to the rise in outbound acquisitions in recent years, Indian and Chinese companies have in recent years become familiar with dealing with antitrust regimes across the world. Likewise, leading global companies are used to filing for merger clearance in multiple jurisdictions.
In the final reckoning, however, China and India's efforts to make their respective forms of capitalism more responsive to the needs of citizens will depend on creating a culture of competitiveness – something no law can do on its own. “People need to be made aware that they shouldn't be talking to their competitors about pricing and other matters,” says Lui Chun Fai of Baker & McKenzie in Shanghai. “Competition law is still a very new thing, in China or in Asia generally.”经济观察,中印反垄断法的影响
